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Jackson: solicitors tell me costs budgeting is working

Lord Justice Jackson has said large numbers of respondents have answered his call for evidence on the extension of fixed recoverable costs.

The appeal court judge is set to report at the end of July on the potential for increasing the scope of the fixed costs regime.

In a speech today, Jackson said he and his assessors are working through large numbers of responses – many of which support his existing costs budgeting rules.

‘One strong message which comes over in many of the submissions and also at the seminars is that (despite all the criticisms in the past) costs management is now working much better,’ he said.

‘It applies the new proportionality rule to the circumstances of each individual case. Many people are arguing that this does away with the need for fixed costs in the multi-track. The counter-argument is that for lower-value cases, a fixed costs regime is simpler and cheaper.’

Adding fixed costs to existing costs management controls has been supported by defendants and liability insurers, who are also worried about the costs incurred before case management conferences.

Jackson said initial analysis by judicial assistants indicates that ‘incurred’ costs represent about 31% of total costs on the claimants’ side and around 14% of total costs on the defendants’ side.

Jackson also reported that a frequent response has been that one size does not fit all, adding there is ‘force’ in that point.

He vowed to identify which types of case and which ‘levels’ of case will be suitable for fixed costs.

‘Many people are arguing that the value of a claim should not be the sole determinant of whether it is suitable for fixed costs,’ he added.

‘One must also look at the complexity of the case, the number of issues, the number of experts and so forth.’

He floated the idea of a new 'intermediate track' to accommodate lower value multi-track cases which are subject to fixed costs. He asked what the procedural rules should be such a category.

Jackson stressed he will put forward a package of proposals which will promote access to justice and control costs, as well as being fair and workable. The government has indicated that his proposals will then be the subject of a consultation.

When dealing with the fallout from CCMC where the judge/master refuses to allocate into phases and gives global pots and no guidance on his thinking gives no certainty other than agitating a costs judge at detailed assessment.

Compared to the chaos around the time of its inception, I'd say budgeting is working ok. Certainly, I'd say it is preferable to fixed costs at the lower end of the multi-track - the latter, if as rigid as previous fixed costs regimes we've seen, would undoubtedly lead to satellite litigation and unjust results in case of particular complexity or importance.

This is all a bit Comical Ali isn't it Rupert? No judges I've come across approaches budgets without a hint of impatience. They don't like it - and that's if you can get a CCMC hearing anyway. They always seem to go into a back up list and then get shunted out the day before and re-listed in three months time. No solicitor I know thinks it adds anything to the process at all except delay. It is just another way of getting everyone so thoroughly fed up that we are almost happy to swallow fixed costs across the board.

I would be more inclined to believe in fixed costs they were regularly reviewed. Some fixed costs are unchanged since the year dot. Try filling in a request for a warrant of control posting it, telling your client about it, and making a profit out of £2.25.

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